THIS CAUSE comes before the Court again with another unique question, this
time incident to sentencing. Ordinarily, the Court can do no more than recommend
the place and/or institutional level of confinement for convicted defendants. At
sentencing, the question of General Noriega's prisoner of war status as that
status relates to confinement was raised, and the parties were afforded time to
submit memoranda, which they did. Argument was heard on November 13, 1992.

Subsequent to argument, Human Rights Watch was permitted to file a Motion for
Leave to Submit an Amicus Curiae Memorandum and coincident to the Motion,
presented the Memo. The Court granted the Motion and has considered the well-
developed presentation of Human Rights Watch. Indeed, each of the parties has
carefully and exhaustively presented positions on the problem facing the Court.

Defendant contends that the Geneva Convention Relative to the Treatment of
Prisoners of War ("Geneva III"), August 12, 1949, is applicable law
that the Court must recognize. Defendant urges further that whether or not the
U.S. government classifies General Noriega as a prisoner of war
("POW"), he is one, in fact, and must be afforded all the benefits of
that status.

Before the Court are several questions, but the ultimate one appears to be
whether or not the Geneva Convention prohibits incarceration in a federal
penitentiary for a prisoner of war convicted of common crimes against the United
States. To resolve this issue the Court must consider three interrelated
questions: 1) what authority, if any, does the Court have in this matter; 2) is
Geneva III applicable to this case; 3) if so, which of its provisions apply to
General Noriega's confinement and what do they require?

I. AUTHORITY OF THE COURT

*************

Because of the unique nature of this case and the presence of important
questions of international law, the Court afforded the parties an opportunity to
file post-sentencing memoranda. Having considered the memoranda submitted, the
argument of counsel, and all other materials relevant to this inquiry, the Court
has concluded that it lacks the authority to order the Bureau of Prisons
("BOP") to place General Noriega in any particular facility. However,
as with all sentencing proceedings, it is clearly the right--and perhaps the
duty--of this Court to make a recommendation that the BOP place Noriega in a
facility or type of facility the Court finds most appropriate given the
circumstances of the case. The Court takes this responsibility quite seriously,
especially in the novel situation presented here where the defendant is both a
convicted felon and a prisoner of war. This dual status implicates important and
previously unaddressed questions of international law that the Court must
explore if it hopes to make a fair and reasoned recommendation on the type of
facility in which the General should serve his sentence.

II. APPLICABILITY OF GENEVA III

Before examining in detail the various provisions of Geneva III, the Court
must address whether the treaty has any application to the case at bar. Geneva
III is an international treaty designed to protect prisoners of war from
inhumane treatment at the hands of their captors. Regardless of whether it is
legally enforceable under the present circumstances, the treaty is undoubtedly a
valid international agreement and "the law of the land" in the United
States. As such, Geneva III applies to any POW captured and detained by the
United States, and the U.S. government has--at minimum--an international
obligation to uphold the treaty. In addition, this Court believes Geneva III is
self-executing and provides General Noriega with a right of action in a U.S.
court for violation of its provisions.

A. Noriega's Prisoner of War Status

The government has thus far obviated the need for a formal determination of
General Noriega's status. On a number of occasions as the case developed,
counsel for the government advised that General Noriega was being and would
continue to be afforded all of the benefits of the Geneva Convention. At no time
was it agreed that he was, in fact, a prisoner of war.

The government's position provides no assurances that the government will not
at some point in the future decide that Noriega is not a POW, and therefore not
entitled to the protections of Geneva III. This would seem to be just the type
of situation Geneva III was designed to protect against. Because of the issues
presented in connection with the General's further confinement and treatment, it
seems appropriate--even necessary--to address the issue of Defendant's status.
Articles 2, 4, and 5 of Geneva III establish the standard for determining who is
a POW. Must this determination await some kind of formal complaint by Defendant
or a lawsuit presented on his behalf? In view of the issues presently raised by
Defendant, the Court thinks not.

ARTICLE 2

[T]he present Convention shall apply to all cases of declared war or of any
other armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them. The
Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party.... (emphasis added)

The Convention applies to an incredibly broad spectrum of events. The
government has characterized the deployment of U.S. Armed Forces to Panama on
December 20, 1989 as the "hostilities" in Panama. Letter from the
State Dep't to the Attorney General of the United States, Jan. 31, 1990 at 1.
However the government wishes to label it, what occurred in late 1989-early 1990
was clearly an "armed conflict" within the meaning of Article 2. Armed
troops intervened in a conflict between two parties to the treaty. While the
text of Article 2 itself does not define "armed conflict," the Red
Cross Commentary to the Geneva Conventions of 1949 states that:

Any difference arising between two states and leading to the intervention of
members of the armed forces is an armed conflict within the meaning of Article
2.... It makes no difference how long the conflict lasts, how much slaughter
takes place, or how numerous are the participating forces; it suffices for the
armed forces of one Power to have captured adversaries falling within the scope
of Article 4.

Commentary at 23 (footnote omitted).

In addition, the government has professed a policy of liberally interpreting
Article 2:

The United States is a firm supporter of the four Geneva Conventions of
1949.... As a nation, we have a strong desire to promote respect for the laws of
armed conflict and to secure maximum legal protection for captured members of
the U.S. Armed Forces. Consequently, the United States has a policy of applying
the Geneva Conventions of 1949 whenever armed hostilities occur with regular
foreign armed forces, even if arguments could be made that the threshold
standards for the applicability of the Conventions contained in common Article 2
are not met. In this respect, we share the views of the International Committee
of the Red Cross that Article 2 of the Conventions should be construed
liberally.

Letter from the State Dept. to the Attorney General of the United States,
Jan. 31, 1990 at 1-2.

ARTICLE 4

A. Prisoners of war, in the sense of the present Convention, are persons
belonging to one of the following categories, who have fallen into the power of
the enemy:

(1) Members of the armed forces of a Party to the conflict....

Geneva III's definition of a POW is easily broad enough to encompass

General Noriega. It is not disputed that he was the head of the PDF, and that
he has "fallen into the power of the enemy." Subsection 3 of Article 4
states that captured military personnel are POWs even if they "profess
allegiance to a government or an authority not recognized by the Detaining
Power."

ARTICLE 5

The present Convention shall apply to the persons referred to in Article 4
from the time they fall into the power of the enemy and until their final
release and repatriation. Should any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the hands of the enemy,
belong to any of the categories enumerated in Article 4, such persons shall
enjoy the protection of the present Convention until such time as their status
has been determined by a competent tribunal.

An important issue raised by the last two words of Article 5 is, of course,
what is a "competent tribunal"? Counsel for the government has
suggested that, while he does not know what a competent tribunal as called for
in Article 5 is, perhaps the answer lies in Article 8, which states in relevant
part that "[t]he present Convention shall be applied with the cooperation
and under the scrutiny of the Protecting Powers whose duty it is to safeguard
the interests of the Parties to the conflict." Nowhere in this language is
there any indication that one of the rights or duties of the Protecting Powers
is to make POW status determinations. Rather, it seems clear that their purpose
is to facilitate and monitor appropriate treatment of POWs.

During the Geneva III drafting process, the phrase "military
tribunal" was considered in place of "competent tribunal." The
drafters rejected this suggestion, however, feeling that "to bring a person
before a military tribunal might have more serious consequences than a decision
to deprive him of the benefits afforded by the Convention." Commentary at
77 (citing II-A Final Record of the Diplomatic Conference of Geneva of 1949, at
388). Clearly, there was concern on the part of the drafters that whatever
entity was to make determinations about POW status would be fair, competent, and
impartial.

The Court acknowledges that conducting foreign policy is generally the
province of the Executive branch. Whether or not the determination of an
individual's status as a prisoner of war is a political question is a sub-issue
which probably calls for an equivocal answer. While the Court believes that the
question of prisoner of war status properly presented can be decided by the
Court, this conclusion, in the present setting does beg the question of whether
the issue is "properly presented" here. Passing for the moment the
facts that an appeal has been taken and that to this point, at least, no
violation of Geneva III is evident, the Court feels and so determines it has the
authority to decide the status issue presented. This is not to say that the
Executive branch cannot determine this issue under other circumstances. The
Court does suggest that where the Court is properly presented with the problem
it is, under the law, a "competent tribunal" which can decide the
issue. With that in mind, the Court finds that General Noriega is in fact a
prisoner of war as defined by Geneva III, and as such must be afforded the
protections established by the treaty, regardless of the type of facility in
which the Bureau of Prisons chooses to incarcerate him.

B. "Law of the Land"

The Geneva Convention applies to this case because it has been incorporated
into the domestic law of the United States. A treaty becomes the "supreme
law of the land" upon ratification by the United States Senate. U.S. Const.
art. VI, cl. 2. Geneva III was ratified by a unanimous Senate vote on July 6,
1955. 101 Cong.Rec. 8537 (daily ed. July 6, 1955). Thus, Geneva III is a
properly ratified treaty which the United States must uphold. The government
acknowledges that Geneva III is "the law of the land," but questions
whether that law is binding and enforceable in U.S. courts.

C. Enforcement

If the BOP fails to treat Noriega according to the standard established for
prisoners of war in Geneva III, what can he do to force the government to comply
with the mandates of the treaty?

1. Article 78 Right of Protest

There are potentially two enforcement avenues available to a POW who feels
his rights under the Geneva Convention have been violated. The first is the
right to complain about the conditions of confinement to the military
authorities of the Detaining Power or to representatives of the

Protecting Power or humanitarian organizations. This right is established in
Article 78 of Geneva III, and cannot be renounced by the POW or revoked or
unnecessarily limited by the Detaining Power. See Articles 5, 7, 78, 85.

ARTICLE 78

Prisoners of war shall have the right to make known to the military
authorities in whose power they are, their requests regarding the conditions of
captivity to which they are subjected.

They shall also have the unrestricted right to apply to the representatives
of the Protesting Powers either through their prisoners' representative or, if
they consider it necessary, direct, in order to draw their attention to any
points on which they may have complaints to make regarding their conditions of
captivity.

These requests and complaints shall not be limited nor considered to be a
part of the correspondence quota referred to in Article 71. They must be
transmitted immediately. Even if they are recognized to be unfounded, they may
not give rise to any punishment.

Prisoners' representatives may send periodic reports on the situation in the
camps and the needs of the prisoners of war to the representatives of the
Protecting Powers.

In theory, by calling attention to violations of the Convention the prisoner
of war will embarrass the government into rectifying any unacceptable conditions
to which he is being subjected. However, the obvious weakness of this complaint
procedure is that it has no real teeth. Incentive for the government to comply
with the treaty stems from its eagerness to be looked upon favorably by others,
and, it is hoped, from its desire simply to do what is proper under the
circumstances. However, if we truly believe in the goals of the Convention, a
more substantial and dependable method must also be available, if necessary, to
protect the POW's rights. Recourse to the courts of the Detaining Power seems an
appropriate measure, where available.

2. Legal Action a in U.S. Court

A second method of enforcing the Convention would be a legal action in
federal court. The government has maintained that if General Noriega feels that
the conditions in any facility in which BOP imprisons him do not meet the Geneva
III requirements, he can file a habeas corpus action under 28 U.S.C. § 2255.
However, the government also argues that Geneva III is not self- executing, and
thus does not provide an individual the right to bring an action in a U.S.
court. Considered together, these two arguments lead to the conclusion that what
the government is offering General Noriega is a hollow right. According to the
government's position, Noriega could file a § 2255 claim, but any attempt to
base it on violations of the Geneva Convention would be rejected because the
General would not have standing to invoke the treaty.

The doctrine of self-execution has been called "one of the most
confounding" issues in treaty law. United States v. Postal, 589 F.2d 862,
876 (5th Cir.1979), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40
(1979). It is complex and not particularly well understood. A thorough
discussion of the doctrine and its application to Geneva III would be both
premature and unworkable in the context of this opinion. However, the Court
wishes to dispel the notion that it already decided that Geneva III is not self-
executing, and would add that given the opportunity to address this issue in the
context of a live controversy, the Court would almost certainly hold that the
majority of provisions of Geneva III are, in fact, self-executing.

Essentially, a self-executing treaty is one that becomes domestic law of the
signatory nation without implementing legislation, and provides a private right
of action to individuals alleging a breach of its provisions. Postal, 589 F.2d
at 875-77. Thus, even though Geneva III is undoubtedly "the law of the
land," is not necessarily binding on domestic courts if the treaty requires
implementing legislation or does not provide an individual right of action. The
most difficult situations arise in relation to treaties like Geneva III which
have no U.S. implementing legislation, leaving it for the courts to decide
whether the treaty is the type that may function without it.

While the courts have generally presumed treaties to be nonself-executing in
the absence of express language to the contrary, the Restatement would find
treaties to be self-executing unless the agreement itself explicitly requires
special implementing legislation, the Senate requires implementing legislation
as a condition to ratification, or implementing legislation is constitutionally
required. Restatement (Third) of Foreign Relations Law of the United States §
111(4) (1986). Most of the scholarly commentators agree, and make a compelling
argument for finding treaties designed to protect individual rights, like Geneva
III, to be self-executing.

Whether Geneva III is self-executing is a question that has never been
squarely confronted by any U.S. court in a case factually similar to this one.
Only one court has even addressed the self-executing nature of Geneva III, and
that case is not binding on this Court and is readily distinguishable from the
case at bar. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984),
cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985).

The government claims this Court previously found (in the June 8, 1990 Order
on jurisdiction) that the Geneva Convention is not self-executing and thus does
not create any individual rights that a POW could assert in court. In fact, the
Court did not make such a finding because the Court has never addressed the
self-executing nature of Geneva III at all. Rather, in the June 8, 1990 Order
the Court considered whether or not any of Geneva III's provisions would divest
it of jurisdiction to try the case. "[T]he Court is not presented with the
task of determining whether or not Defendants are POWs under Geneva III, but
proceeds with the motion at bar as if Defendants were entitled to the full
protection afforded by the Convention." United States v. Noriega, 746
F.Supp. 1506, 1525 (S.D.Fla.1990) (emphasis added). The Court discussed the
various provisions relied upon by Defendants and concluded that none of them
divested the Court of jurisdiction. Id. at 1525-28. Thus, the Court assumed
Geneva III applied and found that it did not prohibit the Court from hearing the
criminal case against General Noriega. This is a very different issue from
whether or not Geneva III is self- executing, and it does not in any way
foreshadow a conclusion that General Noriega cannot later invoke the Convention
in a U.S. court.

The Court discussed whether individuals have standing to invoke treaty-based
rights, and acknowledged that typically they do not. Id. at 1533. However, it
also noted that if a treaty expressly or impliedly provides a private right of
action, it is self-executing and can be invoked by the individual. Id. at 1533
(citing Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. at 253-54, 28 L.Ed. 798
(1884)).

Finally, the Court considered a number of other international treaties, and
found that none were self-executing. Id. at 1532-35. A determination that the
U.N. Charter, the O.A.S. Charter, and the Hague Convention are not self-
executing does not affect whether or not Geneva III is self-executing because
the self-execution issue is individual to each treaty. The language of those
other agreements is of a broad and general nature and is clearly not intended to
impart on an individual the right to bring a legal action to force compliance
with the treaty.

In the case of Geneva III, however, it is inconsistent with both the language
and spirit of the treaty and with our professed support of its purpose to find
that the rights established therein cannot be enforced by the individual POW in
a court of law. After all, the ultimate goal of Geneva III is to ensure humane
treatment of POWs--not to create some amorphous, unenforceable code of honor
among the signatory nations. "It must not be forgotten that the Conventions
have been drawn up first and foremost to protect individuals, and not to serve
State interests." Commentary at 23.

The Court can envision numerous situations in which the Article 78 right of
protest may not adequately protect a POW who is not being afforded all of the
applicable safeguards of Geneva III. If in fact the United States holds Geneva
III in the high regard that it claims, it must ensure that its provisions are
enforceable by the POW entitled to its protections. Were this Court in a
position to decide the matter, it would almost certainly find that Geneva III is
self-executing and that General Noriega could invoke its provisions in a federal
court action challenging the conditions of his confinement. Even if Geneva III
is not self-executing, though, the United States is still obligated to honor its
international commitment.

III. CONTROLLING PROVISIONS OF GENEVA III

The Court's final task is to determine which provisions of Geneva III are
relevant to an individual who is both a prisoner of war and a convicted felon.
While these characteristics are not mutually exclusive, the combination of the
two in one person creates a novel and somewhat complicated situation with
respect to the application of Geneva III.

The essential dispute between Noriega and the government is whether to rely
on Articles 21 and 22 or on Article 108 in determining where to place the
General. The defense argues that Articles 21 and 22, which explicitly prohibit
placing POWs in penitentiaries, apply to General Noriega. The government
contends that Article 108 controls, and allows the BOP to incarcerate a POW
serving a criminal sentence anywhere U.S. military personnel convicted of
similar offenses could be confined, including penitentiaries.

Some concern has been expressed about the potential inconsistency between
these provisions. However, a careful reading of the various Articles in their
proper context proves that no inconsistency exists. Simply stated, Articles 21
and 22 do not apply to POWs convicted of common crimes against the Detaining
Power. The Convention clearly sets POWs convicted of crimes apart from other
prisoners of war, making special provision for them in Articles 82- 108 on
"penal and disciplinary sanctions."

A. Articles 21 and 22

ARTICLE 21

The Detaining Power may subject prisoners of war to internment. It may impose
on them the obligation of not leaving, beyond certain limits, the camp where
they are interned, or if the said camp is fenced in, of not going outside its
perimeter. Subject to the provisions of the present Convention relative to penal
and disciplinary sanctions, prisoners of war may not be held in close
confinement except where necessary to safeguard their health and then only
during the continuation of the circumstances which make such confinement
necessary. (emphasis added)

ARTICLE 22

Prisoners of war may be interned only in premises located on land and
affording every guarantee of hygiene and healthfulness. Except in particular
cases which are justified by the interest of the prisoners themselves, they
shall not be interned in penitentiaries. (emphasis added)

Articles 21 and 22 appear at the beginning of Chapter I--"General
Observations"--of Section II--"Internment of Prisoners of War."
This chapter of Geneva III deals with the internment of POWs who have not been
convicted of crimes, and is thus inapplicable to General Noriega. Defendant's
reliance on these Articles is misplaced; if anything, they make clear that POWs
convicted of crimes are subject to a different set of rules than other prisoners
of war. Article 22's general prohibition against internment of POWs in
penitentiaries is limited by Article 21's acknowledgement that all general
requirements regarding the treatment of POWs are "subject to the provisions
of the present Convention relative to penal and disciplinary sanctions."
This reference to Articles 82-108 shows that the Articles in Section II, Chapter
I do not apply to POWs serving judicial sentences.

Further support for this argument is the use of the term
"internment" throughout Section II, Chapter I, as opposed to the terms
"detention," "confinement," or "imprisonment" used
in the penal sanctions Articles. The Commentary elaborates on this point:

The concept of internment should not be confused with that of detention.
Internment involves the obligation not to leave the town, village, or piece of
land, whether or not fenced in, on which the camp installations are situated,
but it does not necessarily mean that a prisoner of war may be confined to a
cell or room. Such confinement may only be imposed in execution of penal or
disciplinary sanctions, for which express provision is made in Section VI,
Chapter III.

For these reasons, it is the opinion of this Court that Articles 21 and 22 do
not apply to General Noriega.

B. Article 108

The government has argued that the Geneva Convention "explicitly and
unambiguously" authorizes the BOP to incarcerate Noriega in a penitentiary,
so long as he is not treated more harshly than would be a member of the U.S.
armed forces convicted of a similar offense.

Pursuant to 18 U.S.C. § 3231, federal district courts have concurrent
jurisdiction with military courts over all violations of the laws of the United
States committed by military personnel. Noriega, 746 F.Supp. at 1525. Ten U.S.C.
§ 814 and 32 CFR § 503.2(a) instruct the military

authorities to deliver the alleged offender to the civil authorities for
trial just like any other individual accused of a crime. Once that individual is
convicted and sentenced by a civil court, he or she is also incarcerated in a
civil facility, including a federal penitentiary, just like any other convicted
criminal.

Paragraph one of Article 108 reads:

Sentences announced on prisoners of war after a conviction has become duly
enforceable, shall be served in the same establishments and under the same
conditions as in the case of members of the armed forces of the Detaining Power.
These conditions shall in all cases conform to the requirements of health and
humanity.

Pursuant, then, to paragraph one it appears that General Noriega could
technically be incarcerated in a federal penitentiary without violating the
Geneva Convention. However, this should not be the end of the inquiry. The real
issue is whether federal penitentiaries in general or any particular federal
penitentiary can afford a prisoner of war the various protections due him under
the Geneva Convention.

Article 108 requires that the conditions in any facility in which a POW
serves his sentence "shall in all cases conform to the requirements of
health and humanity." Interpreting the language of these provisions is not
always easy. The Commentary to Article 108 says reference should be made to
Articles 25 and 29, which lay down minimum standards of accommodation for POWs.
Commentary at 502.

Article 29 provides, in relevant part:

Prisoners of war shall have for their use, day and night, conveniences which
conform to the rules of hygiene and are maintained in a constant state of
cleanliness.

In addition, Article 108 dictates that the POW must be allowed to
"receive and despatch [sic--British spelling] correspondence, to receive at
least one relief parcel monthly, to take regular exercise in the open air, to
have the medical care required by [his] state of health, and the spiritual
assistance [he] may desire." Many of these terms are vague. For example,
what is "regular" exercise? Reasonable people may differ on what these
provisions require. However, given the United States' asserted commitment to
protecting POWs and promoting respect for the laws of armed conflict through
liberal interpretation of the Geneva Conventions, vague or ambiguous terms
should always be construed in the light most favorable to the prisoner of war.

C. Other Applicable Articles

Paragraph three of Article 108 states:

In any case, prisoners of war sentenced to a penalty depriving them of their
liberty shall retain the benefit of the provisions of Articles 78 and 126 of the
present Convention.... Penalties to which they may be subjected shall be in
accordance with the provisions of Article 87, third paragraph.

The government concedes that the three Articles cited within the text of
Article 108--78, 87, and 126--also apply to General Noriega. Gov't Resp. to
Def.Post-Hearing Memo. of Law, Sept. 29, 1992 at 4 ("Defendant correctly
contends that a sentenced prisoner of war retains prisoner of war status for
purposes of correspondence, health and spiritual care, and exercise").

Paragraph three of Article 87 prohibits collective punishment for individual
acts, corporal punishment, imprisonment in premises without daylight and, in
general, any form of torture or cruelty. Again, some of these terms are vague,
but because of the U.S. commitment to construing the Geneva Conventions
liberally, and because it is imperative that the United States set a good
example in its treatment of POWs, ambiguous terms must be construed in the light
most favorable to the POW.

Article 126 creates an almost unrestricted grant of authority for
representatives of the Protecting Power and international humanitarian
organizations to supervise the treatment of POWs wherever and in whatever type
of facility they may be held.

The government argues that Article 108's reference to Articles 78, 87, and
126 is an express limitation on Noriega's rights--that these are the only
Articles that apply to POWs incarcerated for common crimes. Defendant counters
that 108 is just a floor, so while POWs may not be treated worse than U.S.
soldiers convicted of similar crimes, frequently they must be treated better.
Noriega asserts that Article 108 must be read in conjunction with Article 85
which states that "[p]risoners of war prosecuted under the laws of the
Detaining Power for acts committed prior to capture shall retain, even if
convicted, the benefits of the present Convention" (emphasis added).

The Commentary supports Noriega's position that he continues to be entitled
to the Convention's general protections:

[T]he Convention affords important safeguards to prisoners of war confined
following a judicial sentence. Some of these safeguards result from general
provisions applicable to all the conditions relating to internment, such as
Article 13 (humane treatment), Article 14 (respect for the person of prisoners
...), Article 16 (equality of treatment). Other provisions refer expressly to
the execution of penalties and specifically prohibit cruelty, any attack on a
prisoner's honour (Article 87), and discriminatory treatment

(Article 88).... [C]onfinement does not involve any suppression of the
principal safeguards afforded to prisoners of war by the present Convention, and
the number of provisions rendered inapplicable by the fact of ... confinement is
therefore small.... In fact, these articles [78, 87, 126] are among the
provisions which are not rendered inapplicable by confinement. Because of their
greater importance, however, ... special reference was made to them.

Commentary at 501-03 (emphasis added). It thus appears that a convicted POW
is entitled to the basic protections of Geneva III for as long as he remains in
the custody of the Detaining Power. Throughout the Commentary to Article 108,
reference is made to Articles other than the three specifically named in the
text. Commentary at 500-08. The logical conclusion is that judicial confinement
serves to abrogate only those protections fundamentally inconsistent with
incarceration.

This Court finds that, at a minimum, all of the Articles contained in Section
I, General Provisions, should apply to General Noriega, as well as any
provisions relating to health. By their own terms, Articles 82-88 (the General
Provisions section of the Penal and Disciplinary Sanctions chapter) and 99-108
(Judicial Proceedings subsection) apply.

In addition, the Court would once again note that the stated U.S. policy is
to err to the benefit of the POW. In order to set the proper example and avoid
diminishing the trust and respect of other nations, the U.S. government must
honor its policy by placing General Noriega in a facility that can provide the
full panoply of protections to which he is entitled under the Convention.

IV. CONCLUSION

Considerable space has been taken to set forth conclusions which could have
been stated in one or two pages. That is because of the potential importance of
the question to so many and the precedentially uncharted course it spawned. The
Defendant Noriega is plainly a prisoner of war under the Geneva Convention III.
He is, and will be, entitled to the full range of rights under the treaty, which
has been incorporated into U.S. law. Nonetheless, he can serve his sentence in a
civilian prison to be designated by the Attorney General or the Bureau of
Prisons (this is a pre-guidelines case) so long as he is afforded the full
benefits of the Convention.

Whether or not those rights can be fully provided in a maximum security
penitentiary setting is open to serious question. For the time being, however,
that question must be answered by those who will determine Defendant's place and
type of confinement. In this determination, those charged with that
responsibility must keep in mind the importance to our own troops of faithful
and, indeed, liberal adherence to the mandates of Geneva III. Regardless of how
the government views the Defendant as a person, the implications of a failure to
adhere to the Convention are too great to justify departures.

In the turbulent course of international events--the violence, deceit, and
tragedies which capture the news, the relatively obscure issues in this case may
seem unimportant. They are not. The implications of a less-than-strict adherence
to Geneva III are serious and must temper any consideration of the questions
presented.